The Constructive Divorce

There is a need for a complete review of how general litigation and divorce cases are handled.

By Mark A. Chinn (Mississippi)

It is my opinion, after 33 years of practice, that law practice has taken a terrible turn away from serving clients’ needs and serving as true counselors for clients. The change that is called for lies in alternative dispute resolution such as mediation, collaborative law, and arbitration. The change also lies in a complete revision of the way we treat people and handle situations in the litigation environment.

Family law cases involve families. This means that the handling of the family law case impacts lives. And the lives are not just impacted for a certain situation; they are impacted for the rest of their lives. When children are involved, the impact is obvious. The divorcing couple faces a lifetime of having to work with each other as they care for their children. There are also an infinite number of lifetime events, such as birthdays, holidays, boyfriends and girlfriends, sports and other activities, graduations, marriages, and grandchildren, that are there to be shared and enjoyed. In light of this tremendous impact on lives, family lawyers have a unique and particular responsibility to look for ways to make the family law case resolve in a constructive manner.

The command to settle cases is as old as the Bible verse which commands us: “As you go with your accuser before the magistrate, make an effort to settle with him on the way, lest he drag you to the judge, and the judge hand you over to the officer, and the officer put you in prison.” Luke 12:57-59 and Matthew 5:25-26. Abraham Lincoln, known by many as one of the finest trial lawyers of his time, is said to have admonished lawyers to settle cases by saying, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser: in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.” Abraham Lincoln’s Notes for a Law Lecture, cited in, “President’s Message” ABA Journal, February, 2009, p. 11.

Changing the Viewpoint

The first step for lawyers in this process is to change their viewpoint about the law and their role. Have you ever had a client ask you, “What’s your won-lost record against that attorney?” Or, “What is your won-loss record in custody trials?” Have you ever heard a lawyer talk about “winning” a divorce or custody case? The answer to all of these questions is probably, “yes.” However, any experienced lawyer, such as President Lincoln, knows that cases, particularly family law cases, are never “won or lost.”

Family lawyers practice in courts of “equity.” The family law judge does not generally consider himself or herself to be bound by law or procedure, but by fairness. This means that the lawyer who is able to seize a procedural advantage over his opponent may be thwarted by a judge who is bound to ultimately “do right” by the parties and children involved. This means that no matter how strong a case an attorney might build for his client, he may still see the Judge refuse to accept the position if the Judge concludes it will lead to a result which is fundamentally unfair. Finally, it must always be remembered that even if a family lawyer is able to pull off a stunning “victory” in the trial court, there is a good chance the “victory” will be taken away by a higher court.

Mediation

An obvious tool for settling disputes without unnecessary litigation is mediation. I made a change toward moving my cases to mediation almost ten years ago. I observed that our standard procedure was to file a lawsuit, conduct discovery, and then get down to the trial date, only to have the Judge force a settlement at the courthouse on the day of trial. This seems to be a waste of resources and lives. Mediation serves as a “mini trial date” to force the lawyers and the parties to sit down and work on the case. The mediator plays a role of making each party see the pros and cons of his or her position. The mediators can help lawyers show their own clients the unreasonableness of a position while preserving the lawyer’s relationship with his client.

Experience shows that even the most complicated of financial cases, or the toughest of custody battles can be resolved in a single day of mediation. It has been said that, on a National basis, 85% of cases that are mediated are settled. My personal statistics are in the 95% success range.

Collaborative Law

Collaborative law has emerged in several states. In collaborative law, the lawyers sign an agreement not to litigate, but to settle the case. The lawyers look for ways to resolve disputes in all aspects of the case through negotiation and mediation and by agreeing to jointly hire appraisers, custody evaluators, and other experts. This saves time, money and loss of quality life time for clients. See: Collaborative Law, Achieving Effective Resolutions in Divorce Without Litigation, published by the American Bar Association Family Law Section (2d Ed. 2008).

Handle Family Law Cases “collaboratively.”

Mediation and collaborative law can be combined to create a technique I call, “handling cases collaboratively.” Although collaborative law is not practiced in most states, its concepts can be combined with mediation to obtain quick and constructive resolutions for clients. Listed below are some of the tools and techniques.

Free Exchange of Information. While there are many times when sworn answers are necessary to conduct “due diligence,” true civil handling of the case involves attorneys making full disclosure without formal discovery. This is similar to the Federal Court’s requirement of “full disclosure.”

Exchange Your Evidence and Proof. There may be times when it is advantageous to withhold evidence or arguments, but most of the time, withholding evidence or arguments creates risk and extends the case unnecessarily. Every time a lawyer attempts to withhold something from opposing counsel or conceal some evidence in the interest of surprise, they run the risk that they will not be permitted to use the evidence for failure to disclose. Disclosure also puts the other side at ease and makes them less anxious about their case. This creates a favorable environment for settlement.

Scheduling. Life is short and law practice is hard enough without attorneys needlessly inflicting inconvenience on each other. Attorneys should band together and make sure that they are considerate to each other in scheduling. Call opposing counsel before scheduling anything, unless it would be stupid to do so. If they are known to be difficult, schedule or notice the matter and send a letter saying you will reschedule if needed, but only to a date which is earlier or similar in time.

Use Joint Experts. Lawyers who do not practice collaborative law can still use the tools of the collaborative lawyer. These practices are less adversary and less expensive:

Create a joint asset list with opposing counsel for use by all parties. The fight should be over values and classification, not what goes on the list. When parties are working from one list, there is less confusion and a better platform for isolating issues.

Jointly employ the family CPA to develop the joint asset list for both parties to use. The CPA should note differences of opinion in values or classification of property.

Jointly employ experts, such as custody experts, valuation experts and CPAs. If you or your client are uncomfortable turning an issue over to a joint expert, employ your own expert to consult with you on how to provide information to the expert and how to question his report when it comes out.

Mediate. Use mediation whenever you can. Knowing the proper timing for mediation is somewhat of an art, but there is almost never any downside to trying to mediate a case. In many cases, our firm attempts to schedule the mediation the very day we are hired. Mediation helps people preserve relationships and avoid unnecessary expense and delay. It also gives both parties a place to tell their story, which many people need.

To have an effective mediation, employ some of the following techniques:

Conduct a pre-mediation meeting with opposing counsel and the mediator to discuss the potential issues and identify the information that each party needs to effectively mediate. Many mediations slowed or even wasted by parties appearing unprepared and using the mediation time to ask for information.

Prepare a mediation notebook for the mediator. Enclose a list of agreed matters and a list of matters in dispute, including the arguments of each party. Enclose an asset list, a spreadsheet showing the respective offers, and the law favoring your position.

Prepare a proposed agreement and send it to the mediator and opposing counsel.

Call opposing counsel in advance of the mediation and ask if there is anything they need to formulate their position.

Decline whenever possible to give an opening statement which attacks the other side.

Conclusion

Life is short and we lawyers can be the architects of the lifestyle we lead. Let’s treat each other with courtesy and civility. Let’s use collaborative techniques and mediation to help our clients achieve rapid and constructive results. The better we do this, the better off society will be.

The preceding contains excerpts from The Constructive Divorce, published by the American Bar Association and which is one of three ABA books authored by Mark Chinn on family law, all of which may be purchased at www.ababooks.org. Mark Chinn enjoys a perfect 5.0 “Preeminent Rating” from Martindale Hubbell. You may learn more about Mark and his publications at www.chinnandassociates.com. Mark writes a weekly family law blog which may be found at markchinn.blogspot.com and he produces a weekly video blog entitled “A Litigator’s Rules for Life” which may be accessed on his web site.